An earlier version of this paper was presented at the Sydney Social Justice Network’s inaugural PhD conference in November 2013.

Same-sex marriage: The road to social justice?

Louise
Richardson-Self, The University of Sydney

The goal of marriage equality should be the social and legal non-discrimination of lesbian,
gay, bisexual and transgender (LGBT) people. But how likely is same-sex
marriage to lead to social justice? This article argues that, while same-sex
marriage is justified, social justice is best served when the normative
importance of marriage is undercut.

A common argument in favour of same-sex marriage is that, without reform, LGBT people
are confined to the status of second class citizens. Take this statement from
Australian Marriage Equality (2013; emphasis added), one of Australia’s
leading same-sex marriage advocacy organisations:

Consider all the other groups in society, along with people of colour and same-sex attracted people, who at one time or
another have been denied the right to marry the partner of their choice: women,
people from differing faiths, people with disabilities … The gradual acceptance
that members of these groups are fully adult, fully citizens and fully
human, has been accompanied by an acceptance of their right to marry whomever
they wished.

Opponents claim that marriage requires one man and one woman by definition.

What it means to be a citizen (and thus, to be entitled to equal rights) is closely bound with
the Western cultural conception of ‘being fit for marriage’. There is a
political myth that marriage and the nuclear family play ‘a uniquely
foundational role in sustaining civil society’ (Calhoun 2000, p. 123). In fact,
marriage and the nuclear family are imagined as ‘the bedrock on which social
and political life is built’ (Calhoun 2000, p. 123).

Same-sex marriage advocates will also usually attempt to undermine the necessary heterosexuality of marriage and ‘requirement’ of biological procreation, but do not challenge the normative conception or importance of this institution.
Normative marriage is characterised by monogamy, long-term commitment, sexual
fidelity, companionship, economic support and so on. Another argument from AME illustrates
this point:

Allowing same-sex couples to be included in such a universal and valued institution as marriage will provide them and
their families with real social and cultural benefits … [Married same-sex
couples] felt marriage had increased their commitment and their sense of responsibility,
and had generally strengthened their relationships … There is also a growing
body of research showing that married partners, including same-sex married
partners, are, on average, healthier, happier and longer lived, than their
cohabiting peers, or singles (2013).

In short, marriage is good, and it is better to be married.

On the other hand, opponents claim that marriage requires one man and one woman by
definition, since the possibility of natural procreation is a necessary
component of the marital union. Consider Australian Christian Lobby Managing
Director Lyle Shelton’s (2013) views on the matter: ‘Marriage between a man and
a woman is good for society and beneficial for governments to uphold in
legislation. It’s about providing a future for the next generation where they
can be raised by their biological parents, wherever possible’.

It is therefore clear that the popular same-sex marriage debate concerns which aspects
of the marital relationship have intrinsic worth and who can uphold
these aspects, not whether marriage has intrinsic worth. The implicit
idea behind all this is that, if marriage is intrinsically valuable, and
same-sex couples qualify for marriage, then same-sex relationships must be
intrinsically valuable, too. If same-sex relationships are seen as
intrinsically valuable, then the thought is that LGBT people will come to face
less social discrimination.

As stated above, what is at stake in the same-sex marriage debate is the non-discrimination of
LGBT people, and it is clear that non-discrimination depends not only upon LGBT
people’s legal status, but how they are socially perceived as well. However, LGBT
people should be respected and accepted regardless of their (real or
perceived) sameness and/or difference to normative heterosexuals. In other
words, same-sex relationships should be understood as valuable in and of
themselves, not valuable insofar as they resemble normative marriage.

If one accepts this claim, then we have reason to ask whether the arguments circulated in favour of same-sex marriage forcefully challenge the social norms which contribute to LGBT
discrimination. I’m concerned that retaining the hierarchically privileged
status of marriage and opening it up to LGBT people is unlikely to be the best
way to combat discrimination. Non-normative LGBT people and non-normative
heterosexuals may be more likely to face discrimination if marriage becomes a
homosexual norm. It is therefore worthwhile to explore some alternatives. Could
LGBT people be perceived as moral equals and treated as such without having to
endorse a normative commitment to the hierarchical worth of marriage?

UNDERSTANDING LGBT DISCRIMINATION

The defining identity trait of the homosexual, according to our collective normative
perception, is the sex that they have. Much of LGBT people’s inability to
present themselves positively in the public sphere stems from this frequent
reduction of homosexual identity to a set of sex acts—sex acts that
have been deemed immoral, wrong or inappropriate, in opposition to heteronormative
sexual practices.

Homosexuality needs to come to be understood as a complex cultural phenomenon.

A heterosexual identity, alternatively, is much more complex within our collective normative
perception. Heterosexuality, unlike homosexuality, is an assumed way of being
oriented in the social world: it is taken for granted in social interactions,
advertising, film and television representations, modes of flirting, dating and
so forth.

Heterosexuality, but particularly normative heterosexuality, is publicly promoted and
naturalised in a way that homosexuality is not. Homosexuality, too, needs to
come to be understood as a complex cultural phenomenon. LGBT people should be
perceived as more than the sum of their sex acts and should be treated with
dignity and respect. But how is this to happen?

One may simply argue that the state should be neutral with respect to individual conceptions of the
good life. This would be to argue that it is always a bad thing for the state
to promote any normative ideal of intimate relations. The state should create
multiple institutions regulating various forms of intimacies, or perhaps
replace such institutions with a system of contracts for intimate unions.

However, some have been sceptical of such an approach. Consider the following argument:

Defending same-sex marriage on grounds of state neutrality with respect to individuals’ voluntary associations
requires only that same-sex marriages be legally permitted regardless of how
they are morally viewed. Genuine equality for gays and lesbians, however,
requires more than merely coming to be tolerated. It requires that we, as a
culture, give up the belief that gays and lesbians are unfit to participate in
normatively ideal forms of marriage, parenting, and family (Calhoun 2000,
p. 130 – emphasis added).

In other words, denying the intrinsic worth of marriage will not change heterosexual people’s
negative opinions about LGBT people. If the moral perception of LGBT people is
to change—that is, if we, as a culture, are to come to understand LGBT people
as essentially moral beings (inclusive of, but not limited to their sexual
preferences)—then we must give up our belief that they are unfit to participate
in normatively ideal unions. The claim is that, instead of promoting a
plurality of possible intimacies, we ought to re-endorse marriage as morally good
and normatively ideal.

The above argument would essentially conclude that the strategies already employed in Australia
for justifying same-sex marriage are ideal for reducing LGBT discrimination.
Normative heterosexuality is deemed to be morally good. Same-sex couples are
argued to be just like heterosexual couples with respect to marriage. On these
grounds, same-sex love is logically morally acceptable.

Importantly, I agree that genuine equality requires more than tolerance, and I also agree that
LGBT people should be able to marry. However, I disagree that maintaining
marriage’s privileged place in our shared normative consciousness will
facilitate non-discrimination. This is because acceptance is predicated on
pigeonholing people into normative intimate lifestyles in order to gain social
acceptance. This does not amount to true equality either—it is just tolerance
under another guise.

It is certainly true that achieving non-discrimination requires dealing with LGBT people’s cultural
image and not only with law reform. Norms have affective dimensions that can
only be countered by bringing about a change in the way LGBT people are
imagined and felt about. Yet, if the current popular arguments for same-sex
marriage are antithetical to the goal of non-discrimination, and so too is the
demand for state neutrality, where do we go from here?

SHIFTING THE NORMS SURROUNDING HOMOSEXUALITY AND MARRIAGE

Is it possible to shift the norms surrounding homosexuality and marriage? I believe so. Time, resonance,
and critique are crucial elements that can lead to emancipatory changes in our
dominant shared normative conceptions. Time is a fairly obvious requirement. No
successful normative change is immediate, it is always gradual. Meanings are
constructed and reconstructed across time with the promotion of new narratives.

New narratives must resonate with aspects of dominantly held norms—but not too much.

New narratives must resonate with aspects of dominantly held norms, though. In other words, an
alternative narrative must be able to latch onto some parts of the dominant
meaning-generating story that is already endorsed. For example, an incredibly
resonant aspect of typical arguments in favour of same-sex marriage is the rhetoric
of love: ‘All love is equal’. From this, LGBT people can demonstrate that they
have something in common with heterosexuals.

However, a new narrative can be too resonant with dominant norms, resulting in little
significant change for particular groups. Common arguments for same-sex
marriage (either implicitly or explicitly) endorse heteronormative values, with
activists arguing that the traditional values of marriage will be strengthened thanks to marriage equality (Croome 2010, pp. 26–30). This means that non-normative LGBT people and non-normative heterosexuals are still likely to
face unjustifiable social discrimination because they do not match up to those
norms. Thus, because of the likelihood of ongoing social discrimination, overly
resonant arguments ought to be challenged.

Critique and collective resistance can challenge mainstream norms by reading them against
the grain and pushing back against the heteronormative logic that supports
them. Thus, while it is necessary to maintain some amount of resonance, it is
also important to explicitly critique which normative understandings
have typically been able to shift the way citizens conceive of their political
communities, and who has been able to influenced them. One must always
seek to question the sources of dominant norms.

This is my proposal: First, the pre-political status and intrinsic worth of marriage
should be denied. Second, the argument should be circulated that many intimate
associations (including same-sex associations) are instrumentally valuable to
society, and as such they are worthwhile regulating. This second claim alters
marriage’s status from pre-political institution to state-defined contract. So
far, this is in line with the original state-neutrality proposal.

The next step would be horizontally valuing multiple intimate relationships. Horizontal valuation
takes place when non-normative intimacies are actively promoted. This involves
the circulation of mediated representations of both fictional and real world
examples, via advertising, documentaries, novels or any other medium. It would
also involve support for and promotion of existing legal possibilities for alternative
intimacies and the creation of further institutions. These relationships could
include monogamous but less binding intimacies, polyamorous sexual
relationships, various non-sexual relationships of care including two or more
adults and so forth.

This is a pluralisation strategy. My aim here is not to dictate what obligations and
benefits should be attached to any particular institution. The point is simply
that the availability of alternative institutions needs to be emphasised and
endorsed, and that such institutions ought to be created and introduced to this
end.

Pluralisation is resonant insofar as it represents the multiple forms of relationships and
family units which actually exist in our present society. Some diverse
forms of family that have emerged in recent decades include (but are not
limited to) interracial families, single-parent families, childless couples,
polyamorous partners, non-sexual relationships of care, adoptive parents,
lesbian and gay childless couples, lesbian and gay couples with children, and
so on. Instead of finding resonance in a notion of sameness, where the standard
of measure has already been set by the heterosexual mainstream, I encourage
people to celebrate the differences among plural intimacies, and to endorse the
notion that intimacy is valuable regardless of its relative sameness or
difference to normative marriage.

Always seek to question the sources of dominant norms.

Australia already legally recognises some varieties of intimacies. It recognises de facto
relationships, where partners live together on a genuine domestic basis. De
facto couples have the same rights as married couples under the Family Law
Act 1975 (Cwlth) in relation to the distribution of property;
however, there is usually no right to spousal maintenance, and the relationship
is easily dissolved. Some Australian States also offer civil unions. The
entitlements and obligations of couples who choose to enter a civil union vary
from state to state. Some allow official recognition to take place during a
ceremony, with a certificate bestowed on them by a celebrant. Others do not.

Tasmania allows for the recognition of even more diverse intimacies. The Relationships Act
2003 (Tas) allows for legal recognition of both ‘significant relationships’
and ‘caring relationships’. Significant relationships are sexually intimate
relationships akin to marriage, but less legally binding—this is Tasmania’s
version of a civil union. The caring relationship is a relationship where two
people, whether related or not by family, and of any sex, who are not in
a relationship as a couple but do provide domestic support and personal
care to each other, can be legally recognised (Relationships Tasmania 2012). This
might be, for example, two single mothers who are not involved in a sexual
relationship, but have decided to throw in their lot together in order to
alleviate financial burdens and burdens of child care. Or this may be two
sisters who wish to have legal documentation proving that they are each other’s
next of kin, so that other family members may not overrule their wishes in the
case of a medical emergency.

The Federal Government recognises relationships registered in Tasmania in the areas of ‘taxation,
medical benefits, family law, and workplace entitlements’ (Tasmanian Department
of Justice 2013). The Tasmanian Government also recognises these relationships with
regard to ‘wills, property division, guardianship, health care, statutory
compensation schemes, state taxes, fees and licenses, and state superannuation
and pension schemes’. Moreover, the existence of a deed provides legal proof of
the relationship.

An emphasis on actually existing plural intimacies invites us to think about how norms can press one
model of intimacy upon people, and reflect upon whether this norm of intimacy
is desirable. It also pushes back against dominant norms, challenging the hetero-masculinist
model by engaging in and demanding recognition for other models of intimate and
familial relationships. Highlighting this variety of intimacies may mean
alternative families can come to be deemed valuable in and of themselves. They
would not be understood as those who had failed to find someone with whom to
enter a heterosexual union, nor as people who had failed to maintain a
heterosexual union.

What ultimately gets put into circulation via this type of argument is the conception that,
although marriage may be a significant institution to which LGBT people should rightly
have access as a matter of simple equality, we would do better—if our goal is
non-discrimination for all LGBT people, and even for non-normative
heterosexuals—to genuinely promote and celebrate multiple forms of intimate, caring and familial
relationships.

Louise Richardson-Self recently qualified for the award of Doctor of Philosophy at The University of Sydney, where she works as a casual lecturer and tutor. Her research interests
include contemporary feminist thought, LGBT/Queer Studies, intersectionality,
French feminisms, practical ethics, moral philosophy, contemporary political
philosophy, modern political philosophy, and legal philosophy.